Mr X and Department of Transport, Tourism and Sport

Whether the Department was justified in refusing access to a report commissioned by Irish Rail into the Western Rail Corridor

14 May 2020

Background

In an FOI request to the Department dated 16 November 2019, the applicant said he had been informed that the Department had received a report that Irish Rail had commissioned from EY Consulting in relation to the extension of the Western Rail Corridor (WRC) i.e. Phases 2 and 3 of the project. He sought access to a copy of the first draft report and any subsequent reports. In a decision dated 2 December 2019, the Department withheld the “record sought” under section 29 (deliberative processes) of the FOI Act. The applicant sought an internal review of the Department’s decision to withhold “the report” on 3 January 2020. He did not question whether further drafts are held. On 21 January 2020, the Department said it had reviewed “the relevant record” and was affirming its decision. On 23 January 2020, the applicant applied to this Office for a review of the Department’s decision on the report.

I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and to contacts between this Office, the Department and the applicant. I have also examined the report the subject of the Department’s decision and I have had regard to the provisions of the FOI Act.

Scope of the Review

The scope of this review is confined to whether the Department’s decision on the applicant’s request is justified under the provisions of the FOI Act. One record is at issue, entitled “Western Rail Corridor – a financial and economic appraisal”.

The Department says that its decisions considered the report that it received in November 2019 just prior to receipt of the applicant’s request. I have seen nothing to indicate that any earlier draft reports are held. However, the applicant’s request sought the first and subsequent versions of the report as held by the Department. It could be read as seeking access to the record that the applicant knew that the Department had just received and either any further drafts that it might receive in future or any drafts that it had received earlier. Since the applicant did not raise the matter in his internal review application, I have no jurisdiction to consider whether additional records might be held.

An FOI request only covers records held by an FOI body at the date of receipt of a request. Fresh FOI requests would have to be made for any reports that the Department might receive after the 16 November 2019.

Findings

Section 29

Section 29 is a discretionary exemption, which provides that an FOI request may be refused if (a) it contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations), and (b) the granting of the request would, in the opinion of the head of the FOI body, be contrary to the public interest and, without prejudice to the generality of paragraph (b), the head shall, in determining whether to grant or refuse to grant the request, consider whether the grant thereof would be contrary to the public interest by reason of the fact that the requester concerned would thereby become aware of a significant decision that the body proposes to make. The requirements of sections 29(1)(a) and (b) are independent and the fact that the first is met carries no presumption that the second is also met.

A deliberative process involves the consideration of various matters with a view to making a decision on a particular matter. It would, for example, include some weighing up or evaluation of competing options or the consideration of proposals or courses of action.

The public interest test in section 29(1)(b) differs from the public interest test found in other exemptions under the FOI Act. Other exemptions require the public body to be of the opinion that the public interest would be better served by release. To avail of section 29, the public body must be of the opinion that releasing the records would be against the public interest.

In the Commissioner’s view, this exemption tends more strongly towards release of records. Generally speaking, it would be contrary to the public interest to release a record where a specific harm to the public interest flows from release. While there is nothing in the section 29 exemption itself which requires the deliberative process to be ongoing, the question of whether the process is ongoing or at an end may be relevant. Furthermore, section 29 specifically requires consideration of whether the requester would, by the release of the record(s), become aware of a significant decision that the FOI body proposes to make.

Section 29(1)(a)

The Department says that the record sought is subject to a deliberative process. It refers to Project Ireland 2040 (the 2040 Plan), which recognises the extension of the WRC as having potential to increase passenger, tourist and commercial rail use in the Atlantic Economic Corridor. The 2040 Plan, in line with the Programme for Government, provides for an independent review to be carried out and for the prioritisation of the project if the review’s findings are approved by Government. Accordingly, Irish Rail commissioned an independent external consultancy firm (EY Consulting) to carry out a financial and economic appraisal.

The Department says that following its own review of the report, which is not yet complete, it will submit the appraisal to DPER for its consideration and observations under the Public Spending Code (the Code). The Code governs the decision making processes in relation to major public investments. Following this, the Department will then advise its Minister in relation to the substantive issue. Having circulated a draft Memorandum for Government to all relevant Departments for their observations, the Minister will then bring a final Memorandum to Government for deliberation and decision by the Government. The Department says that while the appraisal is an important part of the review referred to in Project Ireland 2040 and is a critical constituent part of the process to inform a decision of Government, it is not in itself the decision. It emphasises that the 2040 Plan clearly requires the Government to deliberate and decide on whether the WRC is to be extended.

The applicant says that “it is recognised that the Department … is undertaking a deliberative process in relation to the content and recommendations” of the report. He also says, however, that the National Development Plan says that the report’s findings are key and not open to interpretation. He may be of the view that it is the finality of the report itself that determines whether it should be released. However, it is clear to me that the processes further to which the Department and DPER are considering the report, such that the Department may make a recommendation to its Minister, are deliberative in nature. I find that the first requirement of section 29(1), as set out at section 29(1)(a) of the FOI Act, has been met in this case.

Section 29(1)(b)

The Department’s internal review decision says that granting the request would be contrary to the public interest by reason of the fact that the requester concerned would become aware of a significant decision that the body proposes to make. Not unreasonably, the applicant says that this suggests that the Department proposes to make a significant decision in relation to the WRC, and that the public should be aware of this. However, as already noted, he also appears to accept that a deliberative process is ongoing in relation to the WRC. In any event, further to the Department’s submission, I am satisfied that no decision has yet been made in relation to the matter.

The Department says that the disclosure of details such as the Cost Benefit Analysis at this point in time is premature and could undermine the decision making process. It says that disclosure of the report may not fairly disclose the full reasons for any decision of Government that may be made and in so doing may be viewed as prejudicial to the integrity of that decision making process.

The applicant says that in normal circumstances his request might be refused because the deliberations on the matter are not over. However, he says that the exceptional timing of his FOI request and the prevailing circumstances require exceptional action that the Department has not taken into account and which the FOI Act (and specifically section 29) do not provide for. He says that the 2040 Plan provides that the appraisal shall be undertaken immediately. He says that the report cost €500,000 of public money and that fiscal accountability and promotion of transparency within public governance require its disclosure. He says that the appraisal’s independence is critical and its contents must not be compromised, redacted or edited to suit any particular interested party. He says that it cannot contain any information affecting state security or commercially sensitive information and will have to be released sooner or later.

He says that the report enables the democratic process. He says that withholding information about a proposed significant decision in the midst of a general election campaign could be seen as a constructive attempt by the civil service to mislead the public. He says that the release of the report’s recommendations and findings would have enabled the public to discuss and challenge pledges made by candidates in the recent General Election regarding the WRC extension. He also says that such details will presumably have a great bearing on any decision by any political party in relation to the WRC and on any commitments in any new Programme for Government. He says that in any event the public and body politic need to be able to consider the review’s recommendations.

He says that no new Cabinet or Minister has been appointed and that the current caretaker Government cannot consider the question of extending the WRC. He says that there is no guarantee that the new Government will adopt the same policies as did the last Government and therefore no guarantee that the report will ever be given due consideration by the Government or even brought to it for consideration.

The applicant says that the Regional Spatial Economic Strategies 2019-2030 (the RSES) adopted by the North West Regional Assembly (NWRA) refer to the appraisal. He describes the RSES as de facto Government policy decisions that contain legally binding objectives. He refers to the NWRA RSES objective 6.11, which seeks “commencement and completion of the review of the [WRC] project as a priority for passenger and freight transport.” He refers also to another such objective concerning the development of various Greenways, including one to run along the route of the closed railway that has been the subject of a campaign. He says that decisions on these matters cannot be made until the review appraisal is made public. He says local authorities are legally bound to incorporate the RSES’ Regional Planning Objectives in their six-year County Plans (the Plans) and to take account of the contents of the report. He says that it is in the public interest of good regional planning for relevant planners to get access to the appraisal as soon as possible to enable them to integrate its findings into the Plans and also to fulfil the requirements of the RSES objective. He says that the appraisal is de facto now part of the National Development Plan. He also says that in order for the public to make informed submissions on any Plans, they will require access to the appraisal report and that doing otherwise is effectively an obstruction of the planning process.

The applicant also refers to motions passed by a local authority calling on its executive to write to the Minister seeking the release of the report and to a motion tabled for debate by the NWRA seeking full disclosure of the report. He says that the Department has received an estimated 200 FOI requests from December 2019 to January 2020 seeking the report and that it has been the subject of Parliamentary Questions asking for it to be published. He refers to a press release by a campaign group describing the results of an online petition for the use of the closed railway as a greenway and calling for the inclusion of the project in the new Programme for Government and for the release of the report. He says that its disclosure is the right, honest and morally correct thing to do.

It is not relevant whether the report might be made public at some point in the future. While there is nothing in the exemption itself which requires the deliberative process to be ongoing, the question of whether it is ongoing or not may be relevant to the issue of the public interest. What I must consider is whether release at this point in time is contrary to the public interest.

On the matter of the public interest, I have had regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner[2011] 1 I.R. 729, [2011] IESC 26) known as “The Rotunda Judgment” . It is noted that any public interest considered by the Commissioner must be a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law. Although these comments were made in relation to another provision of the FOI Act, I consider them to be relevant to the consideration of public interest tests generally. It is also relevant that the release of records under FOI is accepted generally to be the same as publishing them to the world at large.

While I accept that a large number of members of the public may indeed be interested in the contents of the report, this does not comprise a public interest on the lines of that described in the Rotunda judgment. The FOI Act itself recognises a public interest in ensuring that FOI bodies are open about and can be held accountable for how they carry out their functions. It seems to me that there is a public interest in this case in disclosing information relating to the analysis and recommendations of FOI bodies regarding major capital expenditure projects, which also concern matters such as regional development and planning and the public purse. Release of the report would serve this public interest although less than would, say, records showing the Department’s actual analysis of the report itself. I also accept that the release of a report paid for by public monies would serve the public interest in ensuring accountability for that expenditure. I note that the applicant considers the cost of the report to be significant. However, the fact that a significant cost is involved is not, of itself, sufficient to justify this Office directing the Department to grant access to the report in the public interest.

I also note that section 11(3) of the Act requires FOI bodies, when performing any function under the Act, to "have regard to the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principle of transparency in government and public affairs"; to the need "to strengthen the accountability and improve the quality of decision making of public bodies"; and "the need to inform scrutiny, discussion, comment and review by the public of the activities of FOI bodies and facilitate more effective participation by the public in consultations relating to the role, responsibilities and performance of FOI bodies". It is clear that disclosure of the report would meet the above needs.

The fact that the report was commissioned as a priority and has now been produced does not mean that it must be released at this point in time under FOI. Furthermore, as the applicant points out, section 29 does not explicitly provide for the taking into account of the circumstances such as that his request was made before an election and change of Government. The reality is that the process of considering proposals with a view to evaluation of options and advice before bringing forward a matter for a decision by Government can be slow and is often delayed by various factors. I do not consider that the public interests in favour of granting the request for access to a report which was sent to the Department in late 2019 are entitled to additional weight because of the circumstances in this case. In addition, it is not appropriate for me to direct that access be granted to a record in the public interest based on an assumption that the next Government’s spending or other priorities may differ to those of the last Government.

I must also reject the applicant’s assertions that the Department’s decision to withhold the record under the FOI Act was an attempt to mislead the public during the general election or that it is an obstruction of the planning process. I accept that informed public debate is a key feature of the electoral process. However, it does not follow that this factor of itself requires the disclosure under FOI of records that in any other circumstances may well not fall to be released. Neither is it appropriate for me to direct release of a report to the world at large on the basis that the NWRA, local authorities or other parties believe that the Department should have provided the record to them in processes separate to FOI.

The Department does not argue that the report contains matters relating to state security or that it contains commercially sensitive information. Furthermore, it is not clear to me that section 29 allows me to take account of any impact that release may have on Governmental decision making or the extent to which the report would or would not reveal reasons for such Government decisions.

The Department describes the remaining deliberative processes that it and DPER must carry out before this matter can progress to Government. The Department has to consider the most appropriate recommendation to make to its Minister in relation to the capital project, which will presumably take account of DPER’s views and recommendations from the perspective of prudent public expenditure. I accept that the two FOI bodies need appropriate time and space to engage in a pre-decision deliberative process without undue or unreasonable interference that might arise from the release of the record. Any action that would might result in such an outcome would not, in my view, serve the public interest. I should say that I am not implying that the applicant would cause such interference. Rather, my comments reflect that the release of records under FOI is equivalent to their publication to the world at large.

Although I have identified certain public interests in favour of release, it seems to me that disclosure of the report at this point in time would be contrary to the public interest. I find that the second requirement of section 29(1), as set out at section 29(1)(b) of the FOI Act, has also been met in this case. I find that the Department is justified in withholding the record under section 29(1) of the FOI Act.

However, I should also make it clear that I would not accept that the report is permanently exempt under section 29. It is possible, depending on the stage of the deliberative process reached at the time of a future FOI request, that the public interest in withholding the release of the information might be weakened. However, it is not appropriate for me to speculate on when that might be.

Section 29(2) - The Exceptions to Section 29(1)

Section 29(2) provides that the exemption does not apply if and in so far as the record contains any or all of the following: (a) matter such as rules, procedures, guidelines, interpretations and precedents used, or intended to be used, by an FOI body for the purpose of making decisions, determinations or recommendations; (b) factual information; (c) the reasons for the making of a decision by an FOI body; (d) a report of an investigation or analysis of the performance, efficiency or effectiveness of an FOI body in relation to the functions generally or a particular function of the body; (e) a report, study or analysis of a scientific or technical expert relating to the subject of his or her expertise or a report containing opinions or advice of such an expert and not being a report used or commissioned for the purposes of a decision of an FOI body made pursuant to any enactment or scheme. I am satisfied that none of the exceptions in section 29(2) arise in this case.

Having examined the record in the context of section 29(2)(b) in particular, it seems to me that some very small parts of it could be described as factual information. Section 18(1) of the FOI Act provides for the release of non-exempt material from an otherwise exempt record “if it is practicable to do so”. However, section 18(2) provides that section 18(1) does not apply if the resulting copy would be misleading. I am of the view that it would not be practicable to attempt to extract any factual information from the record while at the same time ensuring that the redacted copy is not misleading under section 18 of the Act. In this regard, it is relevant that the factual information is in many instances inextricably linked to other types of information such as analysis, opinions, estimates etc.

In relation to section 29(2)(e), it seems to me that EY Consulting can be considered to be a scientific or technical expert and that the report relates to the subject of its expertise and contains the opinions or advice of that expert. Therefore, I must determine whether or not the report was used or commissioned for the purposes of a decision of an FOI body made pursuant to any enactment or scheme. The Department says that National Development Plan (as part of the 2040 Plan) and the Programme for a Partnership Government committed to a review of the WRC. It says that in such circumstances, the National Development Plan and the review of the WRC to which it committed is a scheme for the purposes of section 29(2)(e).

The Investigator invited the applicant to comment and also referred him to a decision I made in 2016 on records relating to the National Broadband Plan (NBP) i.e. a Financial Appraisal, a Cost Modelling Report and a Cost Benefit Analysis Report in which the finding was that the NBP is a scheme for the purposes of section 29(2)(e) of the FOI Act

In that decision, I noted that the term "scheme" is not defined in the FOI Act and I had regard to the ordinary meaning of the term. The Oxford English Dictionary defines it as "[a] plan, a design; a project, an enterprise; a programme of work or action to attain an objective ... ". It seemed to me that at the most basic level of analysis, the NBP is a large-scale plan for attaining high speed broadband coverage nationwide. I noted that the documents explain how, as part of the NBP, the Government proposes to intervene to deliver quality high speed broadband in areas where it is uneconomic for the commercial sector to invest. These documents set out key elements of that proposed intervention strategy, including the technical and other standards "to be met by the winning bidder(s) in the procurement process".

The applicant says that the NBP covered many options that the Government might pursue or recommend in relation to that project and that the disclosure of the records concerned could well have affected the complex tendering process. He says that the report at issue here relates to a single one dimensional project and does not look at any other option other than whether the closed railway should be reopened. He says that its disclosure could not have any commercial impact on Irish Rail because, as the national train operator, it has vast experience in the costs relating to railway engineering. He says that it should be fully aware of the cost per kilometre of rebuilding a railway on a route it already owns and can base its tender on the costs it incurred when reopening the first stage of the WRC. He also says that the report cannot be relevant to any tendering process that Irish Rail may have to make and that the company will only act on Ministerial Direction and Order in any event.

The applicant’s arguments seem to me to be largely focussed on the impact of release of the records on Irish Rail and any potential tender for the re-opening of the rail line rather than on the Department’s arguments regarding section 29(2)(e). However, I note that in his correspondence with this Office and the Department he says that the “report is part of the critical Ireland 2040 plan” and “defacto is now part of the National Development Plan”.

According to its website, “Project Ireland 2040 is the government’s long-term overarching strategy to make Ireland a better country for all of its people. The plan changes how investment is made in public infrastructure in Ireland, moving away from the approach of the past, which saw public investment spread too thinly and investment decisions that didn’t align with a well-thought-out and defined strategy. Alongside the development of physical infrastructure, Project Ireland 2040 supports business and communities across all of Ireland in realising their potential.” It is “informed by the Programme for a Partnership Government, which recognises that economic and social progress go hand in hand, and is made up of the National Planning Framework to 2040 and the National Development Plan” (see https://www.gov.ie/en/collection/580a9d-project-2040-documents/).

I accept that Project Ireland 2040 is essentially a long term plan for the State that seeks to balance various capital investments with prudent expenditure of public monies. The record at issue is concerned with the financial and economic appraisal of one capital investment project in which the State may potentially invest. It analyses the various costs and benefits envisaged arising from that project. I accept that Project Ireland 2040, further to which the review was commissioned and will be used by the Department involved for the purposes of to a decision on the re-opening of phases 2 and 3 of the Western Rail corridor, is a scheme for the purposes of section 29(2)(e) of the FOI Act. Accordingly, I find that the record does not fall within the exception in section 29(2)(e) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department’s refusal of the record under section 29(1) of the FOI Act.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.